Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.


A Big Victory for Religious Freedom—But How Wide?


Stanley Carlson-Thies

01-20-2012


The US Supreme Court last week unanimously announced a stunning victory for religious freedom, upholding the right of religious organizations to choose their own leaders.  The decision vindicated the religious freedom of religious organizations against a claim of discrimination —distinct from the usual focus on the religious rights of individuals. 

All of this is noteworthy and praiseworthy.  But the case was about a “ministerial” employee.  What does the decision mean for parachurch organizations and their staff?

The case, Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Opportunity Employment Commission, centered on the validity of the “ministerial exception,” a judge-created concept that prevents a religious institution from being second-guessed—charged with discriminatory action—if it fires, refuses to hire, or doesn’t promote a “ministerial” employee. 

In this case, the employee was a commissioned teacher in a church-operated school.  She taught secular subjects, but was specially trained in theology, called by the congregation, and conducted religious activities.  The federal government said the school violated the Americans With Disabilities Act when it fired her, and that there is no “ministerial exception” that broadly shields religious institutions from such a charge of discrimination. 

Not so, said the unanimous Supreme Court.  “Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs.”  That’s a violation of both the Free Exercise Clause, “which protects a religious group’s right to shape its own faith and mission through its appointments,” and the Establishment Clause, “which prohibits government involvement in such ecclesiastical decisions.”  The First Amendment “gives special solicitude to the right of religious organizations.” 

Thus, the Court said, while “the interest of society in the enforcement of employment discrimination statutes is undoubtedly important, . . . so too is the interest of religious groups in who will preach their beliefs, teach their faith, and carry out their mission.”  The important cause of curbing discrimination does not justify denying the right of religious institutions to pick their leaders.

Note those terms: not only preaching but teaching and carrying out a religious group’s mission—including the educational mission of a school.  Thus, the freedom of religious organizations to choose their leaders without government interference extends beyond churches and clergy.  But how far beyond?

Consideration of religion in employment decisions outside of churches usually rests not directly on the ministerial exception but rather on the “religious exemption” that Congress wrote into our premier national employment law, Title VII of the 1964 Civil Rights Act.  Here Congress said that it isn’t discrimination for a religious organization—a faith-based school, charity, hospital, etc.—to consider religion when deciding who to hire and fire.  (This freedom is sometimes limited when government funds are involved.)  But this religious exemption was not at issue in Hosanna-Tabor

And yet Hosanna-Tabor has a bearing on this statutory religious hiring freedom.  It has a bearing, too, on the desire of religious student clubs to choose without interference those leaders they regard to be faithful in belief and conduct. 

Recall the Court’s stress on the special freedom, anchored in the Religion Clauses, of religious organizations to choose leaders.  As Michael Stokes Paulsen says: “Student religious groups, at state university campuses and at public schools, are religious communities, too.  So are para-church ministries and many other types of religious organizations.  They, too, have the right to control the selection of those who personify their beliefs, and to share their on faith and mission through their decisions.”

So the Supreme Court gives firmer ground to defend the freedom of religious clubs and charities to choose their own leaders, notwithstanding society’s “undoubtedly important” interest in combating invidious discrimination. 

Yet securing pluralism and religious freedom in our society requires another step beyond this ringing defense of the internal freedom of faith-based organizations.  We need, too, a renewed constitutional defense of the varied ways of serving society that organizations guided by differing convictions seek to offer.  In our day, those diverse ways—the pro-life hospital, the drug treatment program that counts on religious transformation, the adoption agency that works with married families—are too often simply labeled as discriminatory.  But their freedom to serve differently must be upheld just as much as Hosanna-Tabor upheld their right to be governed differently.

—Stanley Carlson-Thies is president and founder of the Institutional Religious Freedom Alliance.  He also serves as a Fellow of the Center for Public Justice.



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